Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

05/18/89 the Chicago Bar v. Robert G. Cronson

May 18, 1989

THE CHICAGO BAR ASSOCIATION ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES

v.

ROBERT G. CRONSON, AUDITOR GENERAL OF THE STATE OF ILLINOIS, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

539 N.E.2d 327, 183 Ill. App. 3d 710, 132 Ill. Dec. 17 1989.IL.759

Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JOHNSON, J., concurs. PRESIDING JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Robert G. Cronson, Auditor General of the State of Illinois (the Auditor General), appeals from an order of the circuit court of Cook County determining that the Auditor General has no authority to conduct an audit of the funds of the Attorney Registration and Disciplinary Commission of the Supreme Court of the State of Illinois (the Disciplinary Commission or Commission) or the funds of the State Board of Law Examiners of the Supreme Court of the State of Illinois (the Board of Law Examiners).

We conclude that the Auditor General's audit of the funds of the Disciplinary Commission and the Board of Law Examiners was not envisioned in article VIII of the 1970 Illinois Constitution (Ill. Const. 1970, art. VIII) or in that constitutional provision's statutory codification in the Illinois State Auditing Act (Act) (Ill. Rev. Stat. 1987, ch. 15, par. 301-1 et seq.). We further determine that the Auditor General's audit of the funds of the Disciplinary Commission and the Board of Law Examiners, with report of said audit to the General Assembly and the Governor, would violate the separation of powers clause of the 1970 Illinois Constitution. (Ill. Const. 1970, art. II, § 1.) We also conclude that no genuine issues of material fact appeared in the record to prevent summary judgment. Consequently, we affirm the trial court's order.

The instant cause was initiated when the Chicago Bar Association (the CBA), a not-for-profit association composed primarily of Illinois attorneys who practice law in the Chicago area, and other plaintiffs who had paid a fee to either the Board of Law Examiners or the Disciplinary Commission, filed a complaint for declaratory and other relief against the Auditor General, the Disciplinary Commission, and the Board of Law Examiners. In this complaint, the CBA sought a declaration that the Illinois Constitution and applicable statutes do not authorize the Auditor General to audit the funds of the Disciplinary Commission or the Board of Law Examiners. The trial court realigned the Disciplinary Commission and the Board of Law Examiners as plaintiffs in the CBA suit. Thereafter, the Disciplinary Commission and the Board of Law Examiners filed a complaint similar to that filed by the CBA.

The Auditor General answered the complaints and filed a counterclaim against the CBA, the Disciplinary Commission, and the Board of Law Examiners. This counterclaim sought a declaration that the Auditor General does possess the authority, pursuant to the 1970 Illinois Constitution and applicable statutes, to conduct audits of the funds of the Disciplinary Commission and the Board of Law Examiners. Parties filed appropriate responses or replies to these pleadings. Following discovery, the CBA, the Disciplinary Commission, the Board of Law Examiners, and the Auditor General all filed cross-motions for summary judgment. The following stands undisputed in the record.

The Auditor General has sought to perform an audit of the receipt and use of the funds administered by the Disciplinary Commission and the Board of Law Examiners since 1977. It is the Auditor General's position that these entities are State agencies, that they are each administered by public funds, and that their audit by the Auditor General would not violate separation of power principles provided for in the 1970 Illinois Constitution. The Disciplinary Commission and the Board of Law Examiners have refused audit by the Auditor General on the ground that they are not State agencies administering public funds within the scope of article VIII or the Illinois State Auditing Act, and, pursuant to principles of separation of powers, cannot be audited by the Auditor General.

In 1933, the Illinois Supreme Court commissioned the Board of Governors of the Illinois State Bar Association and the Board of Managers of the CBA to investigate and make such charges of attorney misconduct as may be necessary, pursuant to then Supreme Court Rule 41 (Ill. Rev. Stat. 1933, ch. 110, par. 259). The activities of these bar associations in this regard were funded wholly from the associations' private fees from attorneys who were members of the organizations. The supreme court altered this arrangement in 1973 by the creation of the present Disciplinary Commission pursuant to rules of the Illinois Supreme Court (see 107 Ill. 2d Rules 751 through 774), which asserts the court in its registration of persons licensed to practice law in this State, and in the court's investigation and discipline of misconduct of those attorneys so registered. (See 107 Ill. 2d R. 752.) Members of the Commission, and the Administrator of the Commission, are appointed by the Illinois Supreme Court. (107 Ill. 2d Rules 751, 752.) To fund the Commission's performance of its duties, the Disciplinary Commission collects and administers a disciplinary fund. (107 Ill. 2d R. 751(e)(5).) The only source of this disciplinary fund is a registration fee which must be paid on an annual basis by each attorney admitted to practice law in this State. (107 Ill. 2d R. 756.) The Disciplinary Commission is not funded from any form of State taxation or revenue, its funds are not appropriated by, authorized by, or otherwise governed by enactments of the Illinois legislature, and the Disciplinary Commission utilizes no State facilities, equipment, property, or supplies. The Disciplinary Commission's funds are also not paid to, or maintained by, the State Treasurer. An independent audit of the funds of the Disciplinary Commission has been conducted each year by a private accounting firm. (See 107 Ill. 2d R. 751(e)(5).) This audit has been submitted to the Illinois Supreme Court and published each year in the Disciplinary Commission's annual public report. See 107 Ill. 2d R. 751(e)(5).

The Board of Law Examiners was created in 1897 pursuant to rules of the Illinois Supreme Court (168 Ill. R. 39, currently codified at 107 Ill. 2d Rules 701 through 709) to assist the court in its investigation and Disposition of applications submitted by persons seeking to be admitted to the Illinois bar. (See 107 Ill. 2d Rules 704, 705, 709.) The Board is composed of individuals appointed by the Illinois Supreme Court. (107 Ill. 2d R. 702.) To fund the Board's performance of its duties, the Board of Law Examiners collects and administers an application fund. (107 Ill. 2d R. 706.) The only source of this fund is an application fee which must be paid by each person seeking to be admitted to the Illinois bar. (107 Ill. 2d R. 702(c).) Similar to the Disciplinary Commission, the Board of Law Examiners is not funded from any form of State taxation or revenue, its funds are not appropriated by, authorized by, or otherwise governed by enactments of the Illinois legislature, and the Board of Law Examiners utilizes no State facilities, equipment, property, or supplies. The accounts of the Board of Law Examiners are also not paid to or maintained by the State Treasurer. The Board of Law Examiners' funds are audited each year by a private accounting firm and reported to the Illinois Supreme Court. (107 Ill. 2d R. 702(d).) Funds collected in excess of the expenses of the Board of Law Examiners are applied "as the Court may from time to time direct." 107 Ill. 2d R. 702(d).

The trial court determined that the Disciplinary Commission and the Board of Law Examiners are not State agencies administering public funds within the scope of the Auditor General's powers found in article VIII of the 1970 Illinois Constitution and the Illinois State Auditing Act. The trial court further determined that the Auditor General's audit of the funds of the Disciplinary Commission and the Board of Law Examiners would violate principles of separation of powers. Based upon these determinations, the trial court entered summary judgment in favor of the CBA, the Disciplinary Commission, and the Board of Law Examiners. The Auditor General's appeal followed.

Opinion

The Auditor General argues that he is an officer of constitutional rank whose powers include the audit of all public funds of this State. The Auditor General maintains that he has the constitutional duty to audit the funds of the Disciplinary Commission and the Board of Law Examiners, because both are State agencies that administer public funds. However, the question presented in this appeal is not simply whether the Board of Law Examiners and the Disciplinary Commission are, in a broad or general sense, State agencies using public funds. Rather, the issue presented here is a more narrow one, i.e., whether the Board of Law Examiners and the Disciplinary Commission are State agencies administering public funds subject to the audit powers of the Auditor General pursuant to article VIII of the 1970 Illinois Constitution and the Illinois State Auditing Act.

Article VIII provides a comprehensive scheme for the control, management, and audit of State finances, to ensure that public funds are used for public purposes and that reports of the use of public funds are made available to citizens of this State. (See, e.g., 7 Report of Proceedings, Sixth Illinois Constitutional Convention 2007 et seq. (Report of the Committee of Revenue and Finance) (hereinafter cited as Proceedings).) To achieve these objectives, article VIII first sets out that "[public] funds, property or credit shall be used only for public purposes." (Ill. Const. 1970, art. VIII, § 1(a).) It further provides, "The State, units of local government and school districts shall incur obligations for payment or make payments from public funds only as authorized by law or ordinance." (Ill. Const. 1970, art. VIII, § 1(b).) In addition, "[reports] and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law." Ill. Const. 1970, art. VIII, § 1(c).

Article VIII accords to the Governor the power to prepare a yearly State budget, "[setting] forth the estimated balance of funds available for appropriation at the beginning of the fiscal year, the estimated receipts, and a plan for expenditures and obligations during the fiscal year." (Ill. Const. 1970, art. VIII, § 2(a).) The Governor "shall . . . submit" this budget to the General Assembly. (Ill. Const. 1970, art. VIII, § 2(a).) Although the Governor prepares and submits the State

Article VIII thereafter mandates that the "General Assembly shall provide by law for the audit of the obligation, receipt and use of public funds of the State." (Ill. Const. 1970, art. VIII, § 3(a).) It further provides, "The Auditor General shall conduct the audit of public funds of the State. He shall make additional reports and investigations as directed by the General Assembly. He shall report his findings and recommendations to the General Assembly and to the Governor." (Ill. Const. 1970, art. VIII, § 3(b).) The 1970 Illinois Constitution gives no definition for the term "public funds."

The Illinois State Auditing Act is designed to "implementArticle VIII, Section 3 of the Constitution, and shall be construed in

The Act does not define the term "public funds," and states simply that the phrase "public funds of the State" "has the meaning ascribed to that term in Article VIII of the Constitution." (Ill. Rev. Stat. 1987, ch. 15, par. 301-18.) The Act defines "state agencies" as follows:

"[All] officers, boards, commissions and agencies created by the Constitution, whether in the executive, legislative or judicial branch, but other than the circuit court; all officers, departments, boards, commissions, agencies, institutions, authorities, universities, bodies politic and corporate of the State; and administrative units or corporate outgrowths of the State government which are created by or pursuant to statute, other than units of local government and their officers, school districts and boards of election commissioners; all administrative units and corporate outgrowths of the above and as may be created by executive order of the Governor." Ill. Rev. Stat. 1987, ch. 15, par. 301-7.

The Illinois State Auditing Act states that the "Auditor General has jurisdiction over all State agencies to make post audits and investigations authorized by or under this Act or the Constitution." (Ill. Rev. Stat. 1987, ch. 15, par. 303-1.) A "post audit" or "audit" is "a post facto examination of books, documents, records, and other evidence relating to the obligation, receipt, expenditure or use of public funds of the State, including governmental operations relating to such obligation, receipt, expenditure, or use." (Ill. Rev. Stat. 1987, ch. 15, par. 301-12.) A post audit or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.